tioned in section nineteen hundred and eighty, Title "CIVIL RIGHTS."

20 April, 1871, c. 22, s. 2, v. 17, p. 13; 9 April, 1866, c. 31, s. 10, v.

14, p. 29. In case of second writ of error-amount in controversy.— Under the act of 1836, if the judgment was for less than $2,000, a writ to remove the cause might be allowed by the court. If a second writ was sued out it brought up nothing but the proceedings subsequent to the mandate issued to the court below after the first decision, and taxation of costs after such mandate where it was less than $2,000, gave the Supreme Court no jurisdiction on writ of error. Sizer v. Many, 16 How., 98; Hogg v. Emerson, 6 Id., 437.

If a bill is filed for the specific execution of a contract in relation to the use of a patent, the Supreme Court has no appellate jurisdiction unless the matter in controversy exceeds two [now five] thousand dollars. Such a bill differs materially from one to prevent an infringement of the patentee or his assignees and to protect their rights to the exclusive use of the patent. Brown v. Shannon, 20 How., 55. [See notes to former section.]

Act of 1844-limitation as to amount.-Under the act of 1844, the Supreme Court had jurisdiction, in revenue cases, without regard to amount, only where the judgment was rendered in a circuit court of the United States; and where such a case was brought up from the court of appeals of the Territory of Florida, and it did not show a sufficient amount in controversy to confer jurisdiction, it was dismissed. United States v. Carr, 8 How., 1.

The revenue of the post-office department is a part of the revenue of the government. United States v. Bromley, 12 How., 88.

But it does not include a case, where the action is brought against a collector of a port to recover back duties paid under protest, where the amount claimed is less than $2,000 [now $5,000], and such a case was dismissed for want of jurisdiction. Mason v. Gamble, 21 How., 390 (1858). This decision was made under the second clause of the foregoing section, since which the third clause has been added giving jurisdiction in such cases.

SEC. 700. Cases tried by the circuit court without the intervention of a jury.-When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section. six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal; and when the finding is special the review may extend to the de

termination of the sufficiency of the facts found to support the judgment. [See 2 649.]

3 Mar., 1865, c. 86, s. 4, v. 13, p. 501; See Acts. 24 Sept., 1789, c. 20, s. 22, v. 1. p. 84; 3 Mar., 1803, c. 40, s. 2, v. 2, p. 244.

The finding should be of ultimate facts.-The special finding of facts must be a finding of ultimate facts, and not a mere report of evidence. If the finding is general, only such rulings of the court as are presented by a bill of exceptions can be reviewed by the Supreme Court, but a bill of exceptions cannot bring up the whole testimony for review. Norris v. Jackson, 9 Wall., 125; Barnes v. Williams, 11 Wheat., 415; Prentice v. Zane, 8 How., 470; Suydam v. Williamson, 20 Id., 432; Graham v. Bayne, 18 Id., 62; Cuculler v. Emmerling, 22 Id., 83; Burr v. Des Moines Co., 1 Wall., 99; Insurance Co. v. Tweed, 7 Id., 44; Copelin v. Insurance Co., 9 Id., 461; Coddington v. Richardson, 10 Id., 516. Where a case was submitted to a court, without a jury, and the court found the facts constituting fraud in the origin of the negotiable instrument sued on but did not find that the holder and plaintiff gave value for the same, a judgment for the defendant in the court below was held rightfully given. Smith v. Sac County, 11 Wall., 139; Dirst v. Morris, 14 Id., 484; Dickinson v. Planters' Bank, 16 Id., 250. It may consider errors of law apparent on the face of the pleadings. Insurance Co. v. Folsom, 18 Wall., 237.

Agreed case and special verdict.-When there is no dispute about the amount, counsel may agree on a case stated in the nature of a special verdict. But it is not permissible to send up all the evidence upon a bill of exceptions. Graham v. Bayne, 18 How., 60; Stimpson v. Railroad, 10 Id., 329. No judgment can be rendered on an imperfect verdict, or case stated. Prentice v. Zane, 8 Id., 484; Kelsey v. Forsyth, 21 Id., 85; Campbell v. Boyreau, Id., 223; Insurance Co. v. Tweed, 7 Wall., 44; Bassett v. United States, 9 Id., 38; Bethell v. Mathews, 13 Id., 1; Town of Ohio v. Marcey, 18 Id., 552, where it was held, that in a case where a jury was waived, and there was a submission to the court, and the finding of the court was general, and no exceptions were taken to the admission or rejection of evidence, or the ruling of the court on the trial, there was no question presented for the determination of the Supreme Court.

SEC. 701. Judgment or decree on review.-The Supreme Court may affirm, modify or reverse any judgment, decree, or order of a circuit court, or district court, acting as a circuit court, or of a district court in prize causes, lawfully brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the inferior court, as the justice of the case may require. The Supreme Court shall not issue execution in a cause removed before it from such courts, but shall send a

special mandate to the inferior court to award execution there

upon.

1 June, 1872, c. 255, s. 2, v. 17, p. 196; 24 Sept., 1789, c. 20, s. 24. v. 1, p. 85; 3 Mar., 1893, c. 40, s. 2, v. 2, p. 244; 30 June, 1854, c. 174, s. 13, v. 13, p. 310.

Amendments.-The Supreme Court, on a writ of error, will not direct the court below to allow amendments to be made to the pleadings. Sheehey v. Mandiville, 6 Cr., 253. But it will in certain cases remand a cause so that the pleadings may be amended. Garland v. Davis, 4 How., 131; The Divina Pastora, 4 Wh., 52; Harrison v. Nixon, 9 Pet., 483; The Edward, 1 Wh., 264; The Samuel, Id., 13. Amendments upon a new trial may be permitted. United States v. Hawkins, 10 Pet., 125; Pollard v. Dwight, 4 Cr., 432. See, also, Barnes v. Williams, 11 Wh., 416. Bellows v. Hallowell, etc., 2 Mason, 31; Peterson v. United States, 2 Wash. (C. C.), 36; Day v. Chesm, 10 Wh., 404; United States v. Kirkpatrick, 9 Id., 738; 9 Id., 540; 9 Cr., 244; 10 Id., 449; 16 Pet., 919. See ante, § 649, and notes.

When remanded for further proceedings.-Where the case is beyond the jurisdiction of the court below, in admiralty, in case of a libel for a contribution by way of general average, the case will be dismissed, with directions to the court below to proceed in conformity with the opinion of the Supreme Court. Cutler v. Rae, 7 How., 729; Humphreys v. Leggett, 9 Id., 297. In United States v. Huckabee, 16 Wall., 414, the court say: "Usually where a court has no jurisdiction of a case, the correct practice is to dismiss the suit, but a different rule necessarily prevails in an appellate court in cases where the subordinate court was without jurisdiction and has given judgment or decree for the plaintiff, or improperly decreed affirmative relief to a claimant. In such a case the judgment or decree in the court below must be reversed, else the party which prevailed there would have the benefit of the judgment or decree, though rendered by a court which had no authority to hear and determine the matter in controversy." The cause was reversed and remanded with directions to dismiss the case. See, also, Insurance Co. v. Piaggio, Id., 378.

When matters of law and fact were submitted to the circuit court and the case was taken to the Supreme Court upon bill of exceptions which contained all the evidence, it was remanded to the circuit court with directions tó award a venire de novo. A bill of exceptions must present questions of law. Graham v. Bayne, 18 How., 60; Insurance Co. v. Piaggio, 16 Wall., 378. If the verdict is clearly right, so that if a new venire was awarded the same verdict would be given, the court will not reverse it merely because on some disputed points a charge may have been technically inaccurate. Walbrun

v. Babbit, 16 Id., 577; Bevans v. United States, 13 Wall., 56.

Where the Supreme Court issues a mandate.-If a mandate is issued by the Supreme Court to the circuit court, that must be its guide in executing the decree on which it is issued. And where the direction contained in it is precise and unambiguous, it is the duty of the circuit court to carry it into execution. West v. Brashear, 14 Pet., 51; Ex parte Morris,

9 Wall., 605; the mandate must be construed reasonably, and so as not to work manifest injustice. Railroad Company v. Soutter, 2 Id., 440. See in case of repeal of acts conferring jurisdiction, Ex parte McCardle, 7 Wall., 706.

Distinction between writ of error and appeal.-A writ of error only brings up the errors in law, and can only be brought before the court by writ of error on bills of exception, unless the error is manifest from the record. But where there is no dispute as to facts, the case may be brought before the appellate court by special verdict or on an agreed statement of facts. Suydam v. Williamson, 20 How., 427.

When a new trial will be awarded.—Where there was an agree ment of the parties entered on the transcript stating the amount of damages to be adjudged to the plaintiff upon several alternatives (the verdict stating no alternative), it was held not to form a part of the record brought to the Supreme Court on writ of error, and a trial de novo was awarded to have the damages assessed by a jury. Lanusee v. Barker, 3 Wh., 101.

So, where a demurrer to evidence is defective, for the reason that it does not admit every fact and conclusion which the evidence given by the adverse party conduces to prove, and judgment has, notwithstanding, been rendered upon it for the party demurring by the court below, the judgment will be reversed, and a new trial awarded. Fowle v. The Common Council, 11 Wh., 320; United States Bank v. Smith, Id., 171. See, also, in case of a special finding of a jury in reference to a deed, but which was not contained in the record, McArthur v. Porter, 1 Pet., 626; Farr v. United States, 5 Id., 373; Insurance Co. v. Boykin, 12 Wall., 433.

SEC. 702. Writs of error and appeals from territorial courts. The final judgments and decrees of the Supreme Court of any Territory, except the Territory of Washington, in cases where the value of the matter in dispute, exclusive of costs to be ascertained by the oath of either party, or of other competent witnesses, exceeds one thousand dollars, may be reviewed and reversed or affirmed in the Supreme Court, upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of a circuit court. In the Territory of Washington the value of the matter in dispute must exceed two thousand dollars, exclusive of costs. And any final judgment or decree of the Supreme Court of said Territory in any cause [when] the Constitution or a statute or treaty of the United States is brought in quesmay be reviewed in like manner. [See § § 1909, 1911.]

tion

27

7 April, 1874, c. 80, v. 18, p. 27; 26 June, 1876, c. 147, v. 19, p. 62; Feb., 1877, c. 169, v. 19, p. 241. Utah, 9. Sept., 1850, c. 51, s. 9. v. 9, p.

455. New Mexico, 9 Sept., 1850; c. 49, s. 10, v. 9, p. 449. Washington, 2 Mar., 1853, c. 90, s. 9, v. 10, p. 175. Dakota, 2 Mar., 1861, c. 86, s. 9, v. 12, p. 241. Arizona, 24, Feb., 1863, c. 56, s. 2, v. 12, p. 665. Idaho, 3 Mar., 1863, c. 117, s. 9, v. 12, p. 811. Montana, 26 May., 1864, c. 95 s. 9, v. 13, p. 88. Wyoming, 25 July 1868, c. 235, s. 9, v. 15, p. 180.

What is not a final judgment.-Writs of error from the Supreme Court must bear the teste of the chief justice. A decree of the highest court of Montana Territory affirming an order of an inferior court by which a motion to set aside a sheriff's return to an execution, and an alias execution was awarded, is not a final judgment within the meaning of the organic act of the Territory, giving appeals from the Supreme Court of the Territory to the Supreme Court of the United States. Nor is such a judgment final within the meaning of the judiciary act. Wells v. McGregor, 13 Wall., 188; Cook v. Burnley, 11 Id., 676; Bartemeyer v. Iowa, 11 Id., 26; Miners' Bank v. United States, 5 How., 213.

Excuse for delay in filing record.—Where a transcript of the record had not been filed in the Supreme Court until about two years after the end of the next term after the allowance of the appeal the court refused to dismiss the appeal from the Territory of New Mexico, though contrary to the general rule of practice, it appearing in excuse of the delay that an appeal had been properly prayed for in open court at the time the judgment was rendered, and was then granted, but that the clerk had neglected to make an entry in his minutes of what was thus done; that the district attorney soon after retired from office; and that the new district attorney made application to the court to amend the records to show the facts, which was granted, and an entry made nunc pro tunc. In determining the question the court considered the distance of the seat of government from the place of holding the territorial court and the difficulty of communication with that Territory. United States v. Vigil, 10 Wall., 423. See, also, Castro v. United States, 3 Id., 416; Edmonson v. Bloomshire, 7 Id., 306, as to the general practice to dismiss in such cases.

There have been frequent exceptions to the rule where sufficient excuse has been shown. United States v. Gomez, 3 Wall., 762; United States v. Booth, 21 How., 512; Alviso v. United States, 6 Wall., 457.

Practice under former ácts.-When a writ of error was allowed, the citation signed, and the bond approved by the chief justice of the Territorial court, it was held a sufficient compliance with the statutes (acts of 1789 and 1792); that the clerk of the Territorial court had the power to issue the writ, and the judge to sign the citation and approve the bond, under the provisions of the act of 1838, providing for writs of error and appeals from the Territorial courts. Sheppard v. Wilson, 5 How., 210.

SEC. 703. When a Territory becomes a State after judgment or decree in territorial court.-In all cases where the judgment or decree of any court of a Territory might be reviewed by the Supreme Court on writ of error or appeal,